A Post On Duncan Kennedy

(Blawg Week Continues.)

A reader emailed me asking me what I thought of Duncan Kennedy. Kennedy is best known for being a founding member of the Critical Legal Studies movement, writing "The Critique of Rights", arguing that formal guarantees of rights create a repressively tolerante legal atmoshere. In other words, rights are just the state tossing you a bone--they are insuffiicent to give anything really politically valuable--rather they give the impression of fairness while perpetuating patterns of racial, economic, and class subordination by maintaining collective passivity. Kennedy also wrote a very famous piece entitled "Legal Education and the Reproduction of Hierarchy," arguing everything you've ever suspected of the White Man's Country Club. It's not terribly revolutionary, and doesn't use any empirical data or even anecdotal evidence.

In sum, Kennedy is critiquing privilege while in the seat of privilege. This does not mean we should not acknowledge the obvious fact that hierarchy exists and is reproduced by legal education. I can't tell you how many friends I have who are chasing/living that starting $135,000 big firm dream, and how many of them have acquired and refined their bourgie tastes. I myself entered law school not knowing the difference between Zinfandel and Pinot Grigio, and I left it vowing never to drink something labeled "Arbor Mist" or "Charles Shaw." There is of course hierarchy, and rights of course are not incredibly effective means of changing social values and norms or restructuring governmental obligations. (So, when's the last time you've read about the Voting Rights Act violation being prosecuted?) But what to do about it? I agree with Kennedy's basic thesis while questioning his methodology and his proscriptions (or lack thereof).

My response:

I can't comment on Kennedy without going through how I personally experienced Kennedy, so I apologize for injecting myself in the analysis. I promise you though, that I am using my personal experience only to situate Kennedy in modern American jurisprudence as it is taught to American legal scholars, and that my legal analysis will be objective.

I first was introduced to DK in a college Jurisprudence class. I have not read him again until tonight. At the time, it seemed revolutionary. Of course, at the age of 20, EVERYTHING is revelatory and revolutionary. At this age, a young girl like me is getting her first blush of political awareness and activism. Has anyone else ever said out loud "The Personal is the Political, the Political Personal"? It's at this age when you're either pushed or rescued from the edge of Libertarianism, a curious affliction that plagues many Americans reared on a diet of Ralph Waldo Emersonian "Self-Reliance" and Ayn Randian "Objectivism." This is why Americans appear so vehemently anti-socialist, anti-taxes, and pro Reaganomic small government trickle-down economy. This is why we don't have universal health care and why there are so many homeless children. These ideas of course exist in tension with the American desire to pass the buck--which is why we revolt if our roads are unpaved, if our military does not adequate defend us (not that we'd join the military) and why we blame Government whether or not they do something. So for the person straddling the line politically between being socially liberal but raised to be anti-taxes and anti-socialist, libertarianism is very attractive--and Marxism completely revolutionary.

I mention Marxism because that's basically what DK and the CLS scholars were. They "trashed legal rules" (Mark Kelman) and "critiqued rights" and imputed "the hierarchy and hegemony of whiteness and capitalist values" in EVERYTHING. I'm not saying that they were wrong. In fact, a lot of their stuff I kind of agree with to a certain extent. But they were basically marxist deconstructionists, eager to critique and trash everything but offering nothing to replace that which they have declared the valuelessness of.

I haven't read DK for years. Not since college. To me, he isn't that revolutionary or important anymore. WHat he did may have once been revolutionary, but it became stale. Why? Because deconstructionism offers nothing in its wake. Like I said, as a young student it is revelatory and revolutionary, but as you grow older you realize you want something more than a trashing of legal rules. You want to ask, and be answerd "And then what?" You want options and alternatives. You want real politik and not just idealistic abstractionism.

You are probably aware that I did most of my coursework in Critical Race Theory. I did love it once, and yet I am feeling similarly bereft, asking "and then what?" Yet CRT had two important critiques of CLS. Ironically, for all CLS complained about white hegemonic values, they were all old white guys making these arguments. CRT came along asking "and what about us?" CLS had no answer. With respect to the critique of rights, CRT scholars pointed out that we should not just "trash legal rules" and "critique rights"--as limited a vehicle as normative legal rights are, they are important and do important work for minority groups. DK would have you believe that rights are meaningless compared to other forms of social/political change like social norm change (the idea that racism is bad) or regime change (let's toss out the Constitution)--I would agree that while rights are limited and slow in achieving their effect (and severely constrained by interpretation), they are very important nevertheless. No one would deny the importance of the Civil Rights Amendments. They have done incredibly important work, and that is why we should be worried when their power for corrective justice is constrained. (I am interested in the Section Five enforcement power of the 14th Amendment).

When I think of Duncan Kennedy, I inevitably think of my own journey through jurisprudence. From first blush politcal awareness ("Oh my God, Legal Rules are Arbitrary and Meaningless, Reproducing Hierarchy--How Revelatory!) to current dissatisfaction with what is left after everything has been deconstructed. That is, now that I am aware, what am I to do with this awareness? Kennedy does not tell me what I can do. He only tells me what is wrong. And I need more than that.

That said, Duncan Kennedy and the CLS group did valuable work in trying to dismantle the idea put forth by Herbert Weschler--that there are legal neutral principles to be distilled and applied neutrally, like so many exact teaspoons from recipe to recipe (or case to case). Weschler remains one of the most cited authors to this day, despite decades of CLS and CRT arguments to the contrary that the law is neither neutral nor easilly distilled. The law is infected with hierarchy, white hegemony, and racism--and that is the important point to take away from CLS and CRT. What to do about it is up to each scholar in how s/he interprets the project.

I suspect a big problem with DK is his writing style. I know he is a big smart guy and I am a lowly microorganism by comparison, but I don't really like his style. I can't believe he refers to some theorists as "fancy theory"--what is that? Also, he rambles for pages, critiquing and complaining, without offering any hard data (a problem among my kind) for how law school reproduces hierarchy and how rights are meaningless. Hell, he doesn't even offer anecdotal data. He just talks and talks, as if this were all common knowledge. It kind of is, having been through law school, but in an academic treatise you expect more. I think I have the same problem with him as I do Delgado--nice ideas, until you think about them a little more after the moment of revelation passes, and horrible delivery. These are, after all, Big Smart Guys, and as anti-hierarchy as they are, they make sure you know it--so they often sound full of themselves.

Finally, I'll to situate Kennedy in the jurisprudential canon. I am no expert in jurisprudence, although it's an academic hobby of mine. But here are a couple of professor's takes on it:

Larry Solum's list of Immortals in Legal Philosophy:

Oliver Wendell Holmes, Jr.
Karl Llewellyn.
Hans Kelsen.
H.L.A. Hart.
Niklas Luhmann.
Ronald Coase.
Richard Posner.
Joseph Raz.
Ronald Dworkin.

Notice no one from CLS is in there. I know no one from CRT is in their either, but I've never reallythought of CRT as jurisprudence, at least in the legal philosophy sense. DK would probably argue that he should be since he does work theorizing about rights and semiotics and stuff.

Here's Brian Leiter's:

I agree on Holmes, Kelsen, Hart, and Llewellyn; am uncertain about Posner and Raz; and am skeptical about Coase, Luhmann, and Dworkin.

Let's look at the schools of thought among the immortals. Kelsen and Hart are THE greatest thinkers about sovreignty and legal positivism in the past 20th Century. I still go back and read their works each year. Llewellyn represents Legal Realism, the precursor to CLS, and by far more important (ever hear "judges are just politicians in black robes"?) The idea that there is bias and politics in judging is important and still has traction today Posner is Law and Economics. I'm not a huge fan of L&E, but as a person intersted in empirical legal studies I am aware of its importance in introducing the idea that there can be empiricism and rationalism in the law--this is a dangerous idea if misapplied (see work by Richard Sander) but it is always good to remember that abstract theory should acknowledge the usefulness of real world data. Dworkin has fallen out of favor among legal philosophers lately, just because he's not as good as Hart and Kelsen. His work is somewhat incomplete--he wrote great natural law books (Taking Rights Seriously, Law's Empire) but his ideas don't do as well held up against Hart (see the Hart-Dworkin Debates). Raz does work on the character of the law's normativity and the nature of authority, and I think he ought to be immortal--it's amazing work. Coase did a theorem trying to make law scientific and no one uses it. I tried to use it once. It was bullocks.

To this list, if you're interested in legal theory, I would add Lon Fuller--The Morality of Law. If you're interested in deconstructionism, I would try to stomach some more CLS, and then hop over to CRT. Specifically Chuck Lawrence's "Unconscious Racism", and then for a very recent behavioral psychology analysis of the same, try Jerry Kang. I would also read Cheryl Harris' "Whiteness as Property" and Kimberle Crenshaw's "Intersectionality." Just for fun.